On August 31, 2021, as America brought its last troops out of Afghanistan, President Joe Biden promised to continue providing humanitarian assistance to the country and to support at-risk Afghans. His statement was in line with the concerns raised by U.S. leaders over the past two decades regarding the country’s high levels of humanitarian need and the rights of Afghan women and girls—particularly their rights to education, to earn a livelihood, and to participate in the public life of their country. Behind the scenes, however, the situation is more complicated. While the United States has announced additional humanitarian funding to United Nations agencies and non-governmental organizations (NGOs) working in Afghanistan, significant hurdles remain in ensuring that women and girls have access to crucial services. The United States has added to these hurdles by failing to safeguard educational activities from its sanctions regimes.
Afghanistan’s Education Crisis
Afghanistan has been experiencing a humanitarian crisis for more than 20 years, one that has grown sharply worse since the beginning of 2021. Conflict, COVID-19, and drought have left half of all Afghans in need of humanitarian aid, and nearly half facing high levels of acute food insecurity. According to the UN, “an estimated 3.2 million children under the age of five are expected to suffer from acute malnutrition by the end of the year. At least 1 million of these children are at risk of dying due to severe acute malnutrition without immediate treatment.”
While humanitarian challenges continue to plague the country, Afghanistan has made marked progress in the education sector, in part due to impactful investments by the United States and other donors. Between 2001 and 2020, Afghan children’s enrollment in schools grew from 900,000 male students to more than 9.5 million students, 39 percent of whom were girls. In 2020 alone, the U.S. contributed $86 million for education, which included support for 6,300 schools.
In addition to being a basic need and right enshrined in the Universal Declaration of Human Rights alongside those to food, housing, and medical care, education is a lifesaving intervention. It is a crucial component of every global humanitarian response. Education provides a safe place for children to learn and play, and increases their access to critical services that support health and psychosocial needs. Children enrolled in educational programs have increased access to vaccinations, medications, mental health support, and nutrition through feeding programs. Participating in education reduces the likelihood that a child will be engaged in child labor or recruited into armed groups, and can prevent early marriage and pregnancy. In this way, access to education from the onset of a crisis supports children’s wellbeing in the short term and contributes to longer-term recovery goals.
Unfortunately, Afghanistan’s education gains, and the wellbeing of millions of Afghan children, are now at risk due in part to the United States’ sanctions regimes. In addition to designating the Haqqani Network as a Foreign Terrorist Organization in 2012, the United States designated it and the Taliban in Afghanistan as Specially Designated Global Terrorists in 2001. This prohibits U.S. persons from engaging in transactions or dealings with designated entities by making or receiving contributions of funds, goods, or services to or for their benefit.
Given these designations, even before the Taliban take-over in August, NGOs working in Afghanistan have had to carefully navigate the operating environment, employing rigorous due diligence practices to maintain compliance with U.S. sanctions while ensuring that foreign aid reaches Afghan civilians. With the Taliban now in control of most parts of the country, NGOs are suddenly confronted with a new reality. Routine interactions with government entities—payment for utility services, renting office space on government-owned property, or paying taxes on staff salaries, for example—have taken on newfound risk in the absence of clear guidance from the United States or preexisting safeguards for humanitarian response.
Sanctions General License Omits Education
After weeks in limbo, the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) provided NGOs some clarity via the issuance of two general licenses, one allowing the export of certain essential commodities, such as food and medicine, to Afghanistan and the other authorizing the continued flow of humanitarian assistance and other activities that support “basic human needs.” Although general licenses are not a panacea for addressing the humanitarian impacts of U.S. sanctions on civilians, they are critical for ensuring that aid delivery is explicitly authorized in contexts where NGOs operate in the presence of sanctioned entities, such as Ethiopia, Syria, Venezuela, and Yemen.
While welcomed, the Afghanistan humanitarian license and accompanying Frequently Asked Questions (FAQs) contain a notable omission: there is no carve out for education. Specifically, FAQ 929 defines the terms “humanitarian assistance” and “activities that support basic human needs” as follows:
humanitarian assistance includes the provision of relief services related to natural and man-made disasters, the provision of healthcare and health-related services, protection and assistance for vulnerable or displaced populations…, operation of orphanages, the distribution of articles (such as food, clothing, and medicine) intended to be used to relieve human suffering in Afghanistan, and training or other services related to any of the foregoing activities. Other activities that support basic human needs include activities to support non-commercial development projects in Afghanistan that primarily benefit poor or at-risk populations or otherwise relieve human suffering, including activities related to shelter and settlement assistance, food security, livelihoods support, water, sanitation, health, hygiene, and COVID-19-related assistance, among others, and training or other services related to any of the foregoing activities.
While the definition lists a large range of humanitarian activities, it notably omits the word “education” completely. And while it is possible that the phrase “[o]ther activities that support basic human needs” could be interpreted to include education, at minimum it leaves doubt as to whether education is covered. (There are some safeguards provided exclusively to U.S. Government entities, grantees, and contractors conducting community-based education programs, but these are very narrow in scope and coverage.)
The omission of education from the Afghanistan general humanitarian license (and accompanying FAQs defining its scope) is problematic, given that education is both humanitarian and lifesaving. But it is also surprising, as general licenses for the sanctions programs noted above all contain clauses authorizing educational support.
In practice, this means that NGOs who choose to implement education programs in Afghanistan do so with the fear that they could be subject to legal reprisals. This creates a “chilling effect,” as many NGOs are unable to assume those risks. The absence also exposes NGOs who continue to operate in the education sector to potential “de-risking,” a term used to describe what happens when banks and other financial institutions determine that an entity (such as an NGO) is high-risk and stop providing services to them. The chilling effect and de-risking have real impacts on humanitarian operations; at minimum, NGOs are forced to spend hundreds of hours ascertaining whether the mechanisms they already have in place to prevent assistance from reaching sanctioned entities are sufficient or finding work arounds for financial transactions. This takes time and resources that international NGOs, let alone national and local NGOs, can ill afford.
Beyond these immediate concerns lurks a greater one. Treasury recently released a sanctions review that specifically calls for Treasury to “consider the unintended consequences of current sanctions regimes on humanitarian activity necessary to support basic human needs.” This call could be seen as a step toward additional—or at least more forward-leaning—humanitarian safeguards. But the report failed to specify what Treasury considers “humanitarian activity,” with no mention of education or any other humanitarian sector. Coupled with the glaring absence of educational activities in the Afghanistan licenses and FAQs, there is a real concern that, going forward, Treasury will narrowly define “basic human needs” to a handful of sectors—such as food, health care, and water—and not consistently safeguard educational programs. In the short-term, this would lead to worse health and protection outcomes for children; in the long-term, it would imperil or forestall development gains in the countries that can least afford it.
In the Afghanistan context, by failing to include education programming as a critical humanitarian need, the United States has made learning a point of leverage instead of the opportunity it should be for all Afghan children. Although the Taliban has made policy statements that would prohibit girls—primarily adolescent girls and young women—from attending school, donors like the United States can and should push to ensure equal inclusion regardless of gender. However, diplomatic engagement toward equal access as a policy goal should take place alongside, not in place of, the United States’ commitment to continue supporting education in line with humanitarian principles. Humanitarian programs – neutral, necessary, and lifesaving – should never be a stick, and we should all support the ability of Afghan girls and boys to return to classrooms.
Supporting a Right to Education in Afghanistan
The United States can take three actions to support Afghans’ right to education. First, and immediately, Treasury should amend the Afghanistan general license on humanitarian assistance to explicitly cover education activities (alongside the other activities mentioned in the FAQ). Doing so will relieve pressure on humanitarian and development organizations operating in Afghanistan, allowing them to continue in-person and remote learning activities. Amending the existing general license, rather than issuing new specific licenses for individual organizations in the education sector, correctly positions education as a critical service and avoids confusion amongst the government, NGOs, and financial institutions.
Second, in the medium-term Treasury should collaborate with NGOs and civil society organizations to develop a definition of “basic human needs.” This definition should be informed by the humanitarian cluster system and the Universal Declaration on Human Rights and include essentials like food, health care, and safe drinking water, as well as services such as education, which is also lifesaving and protective. Treasury should ensure that the definition is clearly drafted and refer to it in any future sanctions regimes to forestall misunderstandings.
Third, Treasury should issue a universal general license to safeguard humanitarian activities—based on a collaborative definition of “basic human needs”—applicable to all current and future sanctions programs. Such a license would eliminate the chilling effect; limit the de-risking of NGOs; and, most importantly, prevent pauses in humanitarian programming, including education, that have immediate and long-term effects on individuals and societies.
The United States should seriously consider how a collapse of the Afghan education system could undermine decades of investment and leave a generation of children without access to learning, in direct contradiction to the United States’ stated concerns for Afghans over the past 20 years. Given the political complexities, there are few easy answers, but a failure to safeguard education programming in U.S. sanctions is not part of a solution.
Note: This piece is written in the authors’ personal capacities, and not on behalf of any institutions with which they may be affiliated.